Green v. State, 2D01-1851.
| Decision Date | 13 December 2002 |
| Docket Number | No. 2D01-1851.,2D01-1851. |
| Parties | Leroy GREEN, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James Marion Moorman, Public Defender, and Clark E. Green, Assistant Public Defender, Bartow, for Appellant.
Richard E. Doran, Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appellee.
Leroy Green was arrested and charged with two counts of possession of a controlled substance within 1000 feet of a church and one count of possession of drug paraphernalia. After his motion to suppress was denied, Green entered a plea of guilty and reserved the right to appeal the denial of his motion. Because there was no probable cause or valid consent for the searches that resulted in the seizure of contraband, we reverse.
The transcript of the suppression hearing reveals that at noon on August 24, 2000, two Tampa police officers observed four black males, two sitting on and two standing next to a wall at the end of an apartment building. The officers drove up to the men and got out of their car. One of the men walked into an apartment while the other three, Mr. Green, Mr. Brown, and Mr. Cooper, stayed outside.
Officer Schantz testified that as she approached the men she observed a cloud of smoke around them and smelled the odor of marijuana. Mr. Brown was the person that was smoking. Officer Schantz also saw Mr. Brown and Mr. Cooper discard a plastic baggie, which appeared to contain marijuana, and put out what appeared to be a marijuana cigar. She did not see Mr. Green smoke or discard anything; he simply stood by the wall. Officer Schantz asked the three men for identification. At that time, the men were not free to leave.
When a backup officer arrived, Officer Schantz arrested Mr. Brown and Mr. Cooper and asked the other officer to pat down Mr. Green for officer safety. She and the officer who conducted the search acknowledged that they had no reason to believe that Green was dangerous or had a weapon.
During the search, Green placed his left hand down his groin area. Officer Schantz asked Green whether he had any drugs on his person, and Green responded affirmatively. The officer conducting the search removed a pill bottle with crack and a small baggie of marijuana from Green's underwear. The officers then arrested Green and read to him the Miranda1 warnings.
The officers also took keys from Green. Although he denied having a car in the area, the officers located a car about fifteen to thirty feet away and determined that one of the keys matched the make and model of the car. Green told the officers that the car belonged to his wife but that he drove it. In response to the officers' questions, he acknowledged that there were drugs in the car and agreed to a search. The officers found marijuana in the car.
After Green was charged, he filed a motion to suppress. He argued that he was illegally detained and searched and that all of the evidence obtained as a result of his search and the search of the car had to be suppressed. The trial court concluded that the officers did not have reasonable suspicion to detain Green and that they did not have probable cause to believe that Green was armed so as to justify a pat-down search. However, the trial court concluded that because of the odor of marijuana, the initial encounter and the subsequent detention, arrest, and searches were legal.
An officer who is trained to recognize and is familiar with the odor of marijuana has probable cause, based on the smell alone, to search a person or a vehicle for contraband. State v. T.T., 594 So.2d 839, 840 (Fla. 5th DCA 1992); see also State v. Hernandez, 706 So.2d 66, 67 (Fla. 2d DCA 1998)
. The trial court relied on T.T., Hernandez, and State v. Wynn, 623 So.2d 848 (Fla. 2d DCA 1993), in support of its conclusion that the odor of marijuana gave the officers probable cause to believe the members of the group had marijuana in their possession and to search each person who was present.
The situation in the present case is different from the circumstances in the cases cited by the trial court. In T.T., the officer specifically detected the smell of marijuana coming from T.T. T.T., 594 So.2d at 840. In Hernandez, there was a strong odor of marijuana emanating from a group of people. Hernandez walked away, and the officer followed. When the officer caught up to Hernandez he again noted the odor of marijuana, and Hernandez consented to a search. Hernandez, 706 So.2d at 66.
In Wynn, officers observed two vehicles that were illegally parked. Known drug dealers were conversing with the occupants of the vehicles, but the dealers fled when ...
To continue reading
Request your trial
-
State v. K.V. (In re Interest of K.V.)
...evidence presented at the suppression hearing that the troopers were qualified to recognize the odor of marijuana); Green v. State , 831 So.2d 1243 (Fla. Dist. Ct. App. 2002).[¶19] The rationale for allowing the search of a passenger based on the odor of marijuana emanating from a vehicle i......
-
D.H. v. State
...the appellate court reversed the lower court's denial of Robinson's motion to suppress. Id. at 1233. Similarly, in Green v. State, 831 So.2d 1243, 1246 (Fla. 2d DCA 2002), the Second District reversed a trial court's order denying Green's motion to suppress a baggie of marijuana and crack c......
-
Robinson v. State, 2D06-4092.
...probable cause to search all the individuals to see if any of them are in possession of marijuana. The State cited to Green v. State, 831 So.2d 1243 (Fla. 2d DCA 2002), to support its In denying the motion, the trial court was not persuaded by the State's argument. Instead, it noted that Ro......
-
State v. Taylor
...smelled marijuana, the State drew the conclusion that he was entitled to detain and search the vehicle, citing Green v. State, 831 So.2d 1243, 1245 (Fla. 2d DCA 2002). At the hearing on the motion to dismiss defense counsel objected to the traverse as being legally insufficient in that it a......